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Until recently, the services of a High Court Advocate have only been available to a member of the public, exclusively through his or her attorney. Historically, the profession has always been divided into advocates and attorneys, with no dual practice permitted. The advocates' profession in South Africa was purely a referral profession, meaning that a client had no choice, when dealing with a matter where the services of an Advocate were required, but to first approach and consult with an attorney, who, in turn, instructed an Advocate on behalf of his/her client. Advocates were barred from accepting briefs directly from members of the public.
This siloed approach to legal services resulted, in many cases, in an unnecessary duplication of, or increase in costs that was not in the best interests of the consumer of legal services. This particularly impacted middle class South Africans who have very often found themselves stuck in the unenviable position of being "too wealthy" to qualify for pro bono legal assistance available to the very poor through organisations such as Legal Aid, whilst being "too poor" to afford to pay privately for the specialist services of a High Court Advocate, and an instructing attorney. In too many cases, this meant that the legal needs of this group of South Africans simply went unmet.
To provide a legislative framework for the transformation and restructuring of the legal profession in line with Constitutional imperatives, the State passed the Legal Practice Act 28 of 2014. The Act ushered in a new era for the South African legal profession in a number of ways, one of which was the creation of a third group of legal practitioners - advocates who may now take briefs directly from the public.
Despite this positive development, both advocates and attorneys have, however, been slow to depart from the established status quo and the advocates' profession in South Africa remains overwhelmingly a referral profession, with clients continuing to approach attorneys who, in turn, instruct advocates. There is however a small but growing group of Trust Advocates, like myself, who are now making their services available directly to the public.
The third category of legal practitioners (or second category of Advocates) are referred to as Trust Advocates because like attorneys, Advocates practicing as Trust Advocates in terms of Section 34 (2) (a) (ii) of the Legal Practice Act 28 of 2014, are required to open and maintain a trust account at one of the prescribed banking institutions, the purpose of which is to receive and administer funds received from the public.
Any funds deposited by a client into the trust account of a Trust Advocate (or attorney) remains the property of the client. The Advocate is merely a custodian of the funds and is only entitled to access the funds held in trust once he/she has provided legal services to the client or has incurred expenses on behalf of the client. Therefore, when I provide you with an estimate and request that you deposit an amount of money for me to carry out your mandate, the funds deposited will be held in my Trust Account and will only be drawn on once due for work executed and payable per invoices rendered.
Yes. The funds in an Advocate's Trust Account enjoy certain protections in terms of the Legal Practitioners Fidelity Fund (LPFF), the primary purpose of which is to reimburse members of the public who may suffer monetary loss as a result of the loss of money entrusted to an attorney or trust advocate. Attorneys and trust advocates are also subject to annual audits by IRBA registered auditors and fall under the regulatory oversight of the Legal Practice Council (LPC).
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